Jesus-Flores v. United States

1

ISMAEL DE JESUS-FLORES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil Action No. 1:22-cv-161

Crim. Action No. 1:17-292-1

United States District Court, S.D. Texas, Brownsville Division

February 1, 2023

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Ronald G. Morgan United States Magistrate Judge

On November 29, 2022, Petitioner Ismael De Jesus-Flores filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 1.

On January 30, 2023, the Government filed a response to the motion. Dkt. No. 9.

After reviewing the record and the relevant case law, the Court recommends that the petition be denied. De Jesus-Flores's petition is substantively meritless.

I. Background

A. Factual Background

1. Indictment & Guilty Plea

On April 18, 2017, the grand jury indicted De Jesus-Flores on one count of conspiracy to transport or harbor aliens into the United States and three counts of transporting or harboring aliens into the United States. U.S. v. De Jesus-Flores, Criminal No. 1:17-292-1, Dkt. No. 1 [hereinafter CR].

On April 16, 2019, the grand jury returned a superseding indictment against De Jesus-Flores and four co-defendants. CR Dkt. No. 43. De Jesus-Flores was indicted on one count of conspiracy to transport or harbor aliens in the United States, two counts of transporting or harboring aliens in the United States, one count of conspiracy to commit money laundering, nine counts of money laundering, and five counts of operating an unlicensed money transmitting business. Id.

On March 2, 2020, De Jesus-Flores entered into a plea agreement with the Government, agreeing to plead guilty to one count of conspiracy to transport or harbor aliens and one count of conspiracy to commit money laundering. CR Dkt. No. 161. In exchange for his plea of guilty, the Government agreed to recommend “credit for Acceptance of Responsibility, sentencing at the low end of the advisory guideline level the defendant scores, and dismissal of remaining counts.” Id., pp. 1-2. On that same day, De Jesus-Flores pled guilty before the District Judge. CR Dkt. No. 264.

2. Presentence Report

In the final presentence report (“PSR”), De Jesus-Flores's base offense level was based on the alien transporting charge because the guidelines do not expressly cover conspiracy to commit money laundering. CR Dkt. No. 183, p. 49 (citing U.S.S.G. § 2X1.1). Thus, De Jesus-Flores's base offense level was 12. Id. He was assessed an additional nine level enhancement for harboring 300 undocumented aliens and an additional two level enhancement because he committed the offense after sustaining a prior conviction for a felony immigration offense. Id. He was assessed an additional four level enhancement because he smuggled unaccompanied minors and an additional two level enhancement because he used a minor as an accomplice in the commission of the crime. Id., p. 50. De Jesus-Flores was assessed an additional two level enhancement because he was convicted of conspiracy to commit money laundering. Id. Finally, he was assessed a four-level enhancement as the organizer or leader of a criminal conspiracy. Id. He was given a three-level reduction for acceptance of responsibility. Id. Thus, De Jesus-Flores had a total offense level of 32. Id.

Regarding his criminal history, De Jesus-Flores had eleven adult criminal convictions and was assessed 17 criminal history points. CR Dkt. No. 183, pp. 51-61. He was assessed an additional two points because he was on probation and supervised release at the time he committed the instant offense. Id., p. 61. He was assessed a total criminal history score of 19, resulting in a criminal history category of VI. Id. An offense level of 32 and criminal history category of VI, produced a sentencing guideline imprisonment range of 210 to 262 months.

However, the conspiracy to harbor aliens charge carried a maximum term of 120 months of imprisonment; thus, his guideline sentencing range became 120 months.

CR Dkt. No. 183, p. 67. The conspiracy to commit money laundering charge carried a maximum sentence of 240 months imprisonment; thus, his guideline sentencing range became 210 to 240 months. Id.

Via counsel, De Jesus-Flores filed objections to the PSR. CR Dkt. No. 201. De Jesus-Flores contested the underlying evidence behind the PSR's calculation that he was responsible for transporting 300 undocumented aliens, arguing that the evidence showed he should only be accountable for 78. Id. He also contested the two-level enhancement for having a prior immigration offense and the two-level enhancement for being convicted of a money laundering offense. Id. He argued that his total offense level should only be 31.

On April 26, 2021, the Government filed a request for a downward departure of up to a one-third reduction in the guideline sentencing range, in light of De Jesus-Flores's substantial assistance. CR Dkt. No. 244.

3. Sentencing

On April 26, 2021, the Court held the sentencing hearing. CR Dkt. No. 265. The Court overruled all of De Jesus-Flores's objections to the PSR, finding that there was sufficient evidence within the PSR to support all of the enhancements. Id., pp. 8-12. The Court granted the Government's motion for a downward departure. Id.

The Court declined to accept the Government's recommendation that De Jesus-Flores be sentenced at the low end of his guideline sentencing range, finding that his extensive criminal conduct and his extensive criminal history weighed against such a recommendation. CR Dkt. No. 265, pp. 25-26.

As to the conspiracy to commit money laundering conviction, the Court sentenced De Jesus-Flores to 160 months imprisonment, and three years of supervised release. CR Dkt. No. 252. As to the conspiracy to transport or harbor illegal aliens, the Court sentenced De Jesus-Flores to 120 months imprisonment and three years of supervised release, to be served concurrent to his sentence for the money laundering charge.^[1]Judgment was entered on April 30, 2021. Id. 4. Direct Appeal

De Jesus-Flores timely filed a notice of appeal. CR Dkt. No. 249.

De Jesus-Flores's appellate counsel filed an Anders^[2] brief, stating that there were no non-frivolous appealable issues. De Jesus-Flores v. U.S., Case. No. 21-40353 (5th Cir. 2021); CR Dkt. No. 269. Appellate counsel also filed a motion to withdraw. Id. De Jesus-Flores did not file a response to the motion to withdraw. Id.

On December 16, 2021, the Fifth Circuit granted the motion to withdraw, finding that there were “no nonfrivolous issue[s] for appellate review.” CR Dkt. No. 269. Accordingly, the Fifth Circuit dismissed the appeal. Id.

De Jesus-Flores did not file a petition for writ of certiorari with the Supreme Court. De Jesus-Flores had 90 days in which to file that petition; that deadline expired on March 16, 2022. SUP. CT. R. 13.1. Thus, De Jesus-Flores's conviction became final on that date. Clay v. U.S., 537 U.S. 522 (2003).

B. Motion to Vacate, Set Aside or Correct Sentence Pursuant to § 2255

On November 29, 2022, De Jesus-Flores timely filed the instant § 2255 motion, requesting that the District Court vacate, set aside, or correct his sentence. Dkt. No. 1. De Jesus-Flores did not submit the motion under penalty of perjury. Id., p. 14.

De Jesus-Flores argues that trial counsel was ineffective for: (1) failing to contest the sentencing enhancement for money laundering; (2) failing to interview the alleged unaccompanied minors to refute the enhancement for smuggling unaccompanied minors; (3) failing to be present at his debriefing interviews with the Government; (4) failing to seek a downward departure under U.S.S.G. § 8C4.1. De-Jesus Flores also argues that the sentencing guidelines definition of an unaccompanied minor is impermissibly vague.

On January 30, 2023, the Government filed its response to the petition. Dkt. No. 9. The Government argues that the petition should be dismissed because it was not filed under penalty of perjury. Id. The Government further states that all of De Jesus-Flores's claims are substantively meritless.

II. Applicable Law

A. Section 2255

De Jesus-Flores seeks relief pursuant to 28 U.S.C. § 2255. Dkt. No. 1. As relevant here, that section provides:

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

Where a § 2255 petitioner exhausts or waives his direct appeal, courts may presume that he was fairly convicted. U.S. v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Generally, a petitioner may not raise on collateral attack issues that he failed to raise on direct appeal, absent a showing of cause and prejudice. Id.

“In a habeas action, federal courts stand willing to review issues of jurisdiction, allegations of substantial constitutional violations, and claims that exceptional circumstances resulted in a fundamental miscarriage of justice.” Lawrence v. McCarthy, 344 F.3d 467, 474 (5th Cir. 2003).

III. Analysis

A court may entertain and decide a § 2255 motion without requiring the production of the prisoner at a hearing. 28 U.S.C. § 2255. Further, where the information available in the record and the clarity of the facts demonstrate a clear absence of entitlement to relief, a hearing is not required. U.S. v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (“A motion brought under § 2255 can be...